115 Misc. 422 | N.Y. Sup. Ct. | 1921
This action is one for the specific performance of a contract for the sale of real estate situated in the county of New York. On the day and hour set for the closing of the title and delivery of the deed the defendants rejected the title on the ground that the same was unmarketable because of certain encroachments on adjoining properties. The title company examining the title raised six survey exceptions. The second and fourth exceptions do not make the title unmarketable. It appears from these exceptions that the walls of the premises in the instant case encroach upon the premises adjoining on the east and north. These walls have been erected for over fifty years and may remain undisturbed so long as the building stands. The third and sixth exceptions are such as are frequently found to exist in nearly all premises located in the older sections of our city and arise to a great extent from the differences of opinion of surveyors as to the location of ancient monuments. These exceptions are of minor importance and in no way affect the marketability of the title. Under exception one it appears that the southerly walls of the premises in question encroach eight and one-half inches on the premises adjoining on the south. This exception standing alone would not make the title unmarketable, for the same reasons that are given under exceptions two and four above, but under this exception we are faced with an additional difficulty. The premises adjoining on the south and on which the encroachment is made have for over 120 years been used as an open alleyway and drive. Prior to 1799 the premises adjoining this alley, together with the alley, were owned by one Sharpless, who laid out this alley and sold the lots
Judgment for plaintiff.